President of the Court, acting as Judge of Fifth Chamber K Lenaerts,
Judges M Ilešič, C Lycourgos (Rapporteur), I Jarukaitis
Advocate General M Szpunar
The Netherlands Secretary of State rejected the applications for international protection lodged by three third-country nationals, M, A and T, on the ground that they already had refugee status granted in another member state. By the same decisions, he ordered the applicants to go immediately to those other member states, pursuant to a provision of Netherlands law transposing article 6(2) of Parliament and Council Directive 2008/115/EC, which provided a derogation from the obligation under article 6(1), requiring the member states’ authorities to issue return decisions before sending illegally-staying third-country nationals back to one of the countries specified in article 3(3), such as their country of origin. As none of the applicants complied with the Secretary of State’s orders, they were placed in detention, pursuant to another provision of Netherlands law, for the purpose of their forced transfer to the member states which had granted them refugee status. The applicants brought actions before a Netherlands court claiming that their detentions should have been preceded by the issuing of return orders within the meaning of the national provision transposing article 6(2) of the Directive. The actions brought by M and A were dismissed but the action brought by T was allowed. On the appeals by M, A and the Secretary of State, the Raad van State, Netherlands, stated that it would not be possible to issue a return decision to third-country nationals who, as in the present case, had refugee status in another member state, ordering their return to any of the countries identified in article 3(3) of the Directive, such as their country of origin. The court, accordingly, stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling the question, in essence, whether Directive 2008/115 precluded the detention of an illegally-staying third-country national with a view to transferring him to another member state in which that national had refugee status.
On the reference—
Held, article 6(2) of Directive 2008/115 did not provide an exception to the scope of the Directive which would allow member states to exempt illegally staying third-country nationals from common standards and procedures for return where they refused to return immediately to a member state which had granted them a right of residence. On the contrary, in such a case, the member states were required by article 6(2), read in conjunction with article 6(1), to issue a return decision requiring them to leave the European Union. However, in circumstances such as those in issue, where none of the countries referred to in article 3(3) of the Directive could be a return destination, the member state concerned was legally unable to fulfil the article 6(2) obligation to issue a return decision. Moreover, no standard or procedure laid down by Directive 2008/115 permitted the removal of that national, even though he or she was staying illegally in a member state. Directive 2008/115 did not completely harmonise the member states’ national rules on illegally-staying foreign nationals and the common standards and procedures established by that Directive concerned only the issuing and implementation of return decisions. It followed that, in a situation such as that in issue, where no return decision could be issued, the decision of a member state to force the transfer of an illegally-residing third-country national to the member state which granted him or her refugee status, did not fall within the scope of Directive 2008/115, but came within the sole competence of that member state. Consequently, the same applied to the detention of such a national ordered to ensure their transfer to the member state in which they had refugee status or a residence permit, without first having taken a return decision against them, since such a decision could not, hypothetically, be issued. Accordingly, Directive 2008/115 did not preclude a member state from detaining a third-country national residing illegally on its territory, in order to carry out the forced transfer of that national to another member state in which that national had refugee status, where that national had refused to comply with the order to go to that other member state and it was not possible to issue a return decision to them (judgment, paras 32, 36, 37, 42, 43, 45, 46, 48, operative part).
Per curiam. The forced transfer and detention of a third-country national in circumstances such as those in issue are subject to full observance of the fundamental rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Convention Relating to the Status of Refugees (judgment, para 47).
A Khalaf and H Postma for M.
J van Mulken for T.
M Bulterman, P Huurnink and C S Schillemans, agents, for the Netherlands Government.
N Grünberg, agent, for the Estonian Government.
B Majczyna, agent, for the Polish Government.
C Cattabriga and G Wils, agents, for the European Commission.